Changes and Challenges
9:00 am – 10:45 am
- Organised by Congrui Qiao
- Congrui Qiao, Chair
- Congrui Qiao, “Regulating Government Sanctions on the ‘Untrustworthy’: An Inquiry into Internal and External Controls”
- Straton Papagianneas, “Automated Justice and the Idea of Fairness in the PRC”
- Adam Knight, “Going Viral: COVID-19 and the Road to China’s Social Credit Law”
The Chinese State Governance has featured several far-reaching changes since the inception of Xi Jinping administration in 2013. Whereas an increasing application of data technologies has improved efficiency and efficacy of China’s State governance, critics submit that an unprecedented scale-up of ‘smart’ governance by State organs is more menacing than auspicious.
In respect of the government functioning, the ‘Pilot Zones for Big Data Integration’ have been set up in both developed regions (e.g. Beijing and Tianjin) and under-developed ones (such as Guizhou) that is experimenting the ‘smart government’ that will be able to utilise economic and social data in optimising government decisions. As regards the judiciary functioning, the Supreme Court in Beijing has announced the national plan to ‘smartise’ judicial processes where court decisions will be ultimately automated and human interference will be minimal.
In light of these recent and rapid developments, we shall focus on two of the most important areas of State governance: the judiciary and the government. More specifically, we will make sense of major normative and instrumental changes to the judicial system and the government over the past decade, and examine whether and to which extent they have ensured both effectiveness and fairness in adopting these changes.
Congrui Qiao, “What Constitutes A Riddle? On the Notions of Chinese ‘Riddles’ in Imperial Chinese Sources and their Understanding by ‘Modern’ Western Scholars”
Digitalisation offers opportunities for the State governance to function ‘smart’, and at the same time, poses challenges to the protection of personal rights. It is particularly topical in the context of the implementation of the Social Credit System (“SCS”) in China. While the European Union has adopted a prudent approach to the processing of personal information as exemplified in the enforcement of the General Data Protection Regulation in 2018, China’s approach seems different.
Several implementations of the SCS are currently high-profile in the news and academic debates, a most controversial one being the sanction on the ‘untrustworthy’ (shi xin ren/失信人). This widely applied mechanism of publicising personal information and restricting economic and social activities of the ‘untrustworthy’ alleges to punish and deter credit breaches.
It, however, remains unclear whether the government decision to sanction the ‘untrustworthy’ is lawful and subject to internal and external regulations? To answer that question, two points will be examined in my paper: first, legal bases for the government to impose sanctional decisions on the ‘untrustworthy’ (i.e., lawful grounds and scopes); and, second, regulatory mechanisms for reviewing the government’s sanctional decisions on the ‘untrustworthy’ and addressing complaints thereof (i.e., the review and appeal procedures). For each point, I shall study relevant law and regulation adopted by the State, as well as major cases rising from the implementation phase. I will conclude with some remarks on the consistency of internal and external control norms and their implementations.
Straton Papagianneas, “Automated Justice and the Idea of Fairness in the PRC”
The digitalisation and automation of the judiciary, also known as judicial informatisation, (司法信息化) has been ongoing for two decades in the PRC. The latest development is the emergence of “smart courts” (智慧法院), which are part of the Chinese party-state’s efforts to reform and modernise its judiciary. These are legal courts where the judicial process is conducted digitally, and judicial officers use technological applications sustained by algorithms and big-data analytics. The end-goal is to create a judicial decision-making process that is fully conducted in an online judicial ecosystem where the majority of tasks are automated and opportunities for human discretion or interference are minimal. This article asks how automation and digitalisation might influence judicial fairness in the PRC?
First, it discusses the Chinese conception of judicial fairness through a literature review. It finds that the utilitarian conception of fairness is a reflection of the inherently legalist and instrumentalist vision of law. This is turn, also influences the way innovations, such as judicial automation are assessed. Then, it contextualises the policy of ‘building smart courts,’ launched in 2017, which aimed to automate and digitalise the judicial process. The policy is part of a larger reform drive that aims to recentralise judicial power and standardise judicial decision-making.
Next, it analyses how automation and digitalisation have changed the judicial process, based on court and media reports of smart court applications. The final section discusses the implications of automation and digitalisation for judicial fairness in the PRC. The article argues that, within the utilitarian conceptualisation of justice and law, automated justice can indeed be considered fair because it improves the quality of procedures to the extent that they facilitate the achievement of the political goals of judicial reform and the judiciary in general.
This article is preliminary in the sense that it is based on government documentation acquired through the Internet. Therefore, the conclusions of this article should not be understood as final. They are arguments on the development of algorithmic governance and judicial automation that will have to be tested in further fieldwork-based research in the PRC itself.
Adam Knight, “Going Viral: COVID-19 and the Road to China’s Social Credit Law”
As the scale of the governance challenge brought about by the COVID-19 pandemic became clear, the Chinese state mobilised a wide variety of governing tools at its disposal, including the Social Credit System (SCS). The system was adapted both to assist in pandemic-fighting efforts as well as to mitigate harm arising from its continued operation in unforeseen circumstances. Updates to social credit blacklisting systems were issued, points scoring mechanisms were adapted and a raft of local legislation pushed the SCS further into citizens’ lives than ever before.
Yet just as in government at large, the pandemic also provided a stress test for the SCS. The crisis further highlighted and even exacerbated many of the issues that have plagued the SCS since its launch. Its fragmentation on the one hand ensures flexibility and adaptability, but also makes national or even regional interoperability awkward and even impossible. New debates around the applicability and even legality of the SCS surfaced. Many of the lessons learned from the COVID-19 response are evident in the subsequent development of China’s Social Credit Law (at the time of writing, this law was under review and due to be announced imminently). Drawing on central and local government documents as well as media reporting, this article reviews both the short-term and long-term development prospects of the SCS with particular emphasis on the impact of the COVID-19 pandemic on governance in China.